Ongoing
Battles for Freedom
During the 1980s and ‘90s, several of Doug Christie’s
most important free speech cases, including Keegstra and Zundel,
were highly publicized throughout the Canadian media. These days, it might seem
that the mainstream media is asleep to many fundamental threats to our
freedoms.
Nevertheless, Doug Christie’s work continues on a
number of fronts, including:
R.
v. Montague
Mr. Christie has represented Bruce and Donna
Montague in the Ontario Superior Court of Justice, the Ontario Court of Appeal,
and on a leave application to the Supreme Court of Canada on the issue of the possession
of firearms in their home, contrary to various provisions of the Firearms Act
and licensing and registration requirements, as well as storage requirements
under the Criminal Code and Firearms Act. Those actions were unsuccessful but
there remains the issue of whether firearms must automatically be forfeit when possessed
peaceably, where no crime other than the possession of them is evident. In
other words, there is a provision of the Criminal Code (Section 491) which
requires the forfeiture of firearms if they are used in the commission of an
offence. Firearms merely possessed without proper license, without
registration, or contrary to storage regulations, could be arguably not used in
the commission of an offence. However, the Crown interprets the possession of
firearms used in the commission of an offence as including those offences which
are merely the possession of the firearm itself. This consequence is a result
of the increasingly onerous and draconian firearms legislation in Canada. The
forfeiture of firearms used in the commission of an offence was traditionally
only where the firearms were used in the commission of an offence other than
the mere possession of the firearm itself, such as in robbery or murder or some
other activity where the firearm was being used.
In the ongoing matter, which was adjourned recently
due to Mr. Christie’s health concerns and rescheduled in the fall of 2011, the
issue will be whether Section 491 of the Criminal Code is constitutionally
valid in that it is unnecessary and unconnected rationally to any objective of
public safety when the mere possession of the firearm itself becomes the crime
in which the firearm is allegedly used.
491. (1) Subject
to subsection (2), where it is determined by a court that
(a) a
weapon, an imitation firearm, a prohibited device, any ammunition, any
prohibited ammunition or an explosive substance was used in the commission of
an offence and that thing has been seized and detained, or
(b) that a person has committed an
offence that involves, or the subject-matter of which is, a firearm, a
cross-bow, a prohibited weapon, a restricted weapon, a prohibited device,
ammunition, prohibited ammunition or an explosive substance and any such thing
has been seized and detained,
the thing so seized and detained is forfeited
to Her Majesty and shall be disposed of as the Attorney General directs.
Mr. Christie’s position
is that either this section is unconstitutional, or alternatively that a constitutional
exemption should be allowed for Mr. and Mrs. Montague who possessed these
firearms lawfully before their licensing and registration expired and in fact
they were stored in a room so secure that the police couldn’t find them, even
with a search warrant, unless and until Mr. Montague, under threat of the destruction
of his home revealed their location in a secret sealed chamber in his house.
It is obvious that this
is an important case regarding the restriction of firearms used in Canada and
affects those who lawfully possess firearms but resist the onerous duties of
storage, registration, and licensing that have been imposed on them by those
concerned about firearms abuse in the big cities of Toronto, Montreal, and
Vancouver. Mr. Montague’s case arises in a remote area of Northern Ontario
called Oxdrift, northwest of Dryden, Ontario. Mr.
Christie considers it an honour to represent Mr. and Mrs. Montague, two people
of principle whose entire firearms challenge is set out in their website,
BruceMontague.ca.
The Montague case
resumes again November 14 – 18 in Kenora, Ontario before the Honourable Mr.
Justice Wright in the Ontario Superior Court of Justice.
R.
v. Klundert
There is now an ongoing appeal from the conviction
on the third trial of Dr. Klundert’s evasion charge, stemming from 1993 – 1998,
and there is an appeal by the Crown and the defence from a conviction for
making a false statement and an acquittal for evasion for the same acts and
same process in the years 2000 to 2005. Dr. Klundert’s appeal on the first set
of charges will be heart in the Ontario Court of Appeal on Queen Street West in
Toronto on September 12, 2011. His appeal and the Crown’s appeal of the ruling
of His Honour Judge Campbell has yet to be set for
hearing. The Crown is appealing the sentence, which was
a fine and not an imprisonment for the second set of charges. It is interesting
to note that Dr. Klundert’s conduct in both 1993 to 1998 and 2000 to 2005 was
identical, at least as to the substance of the tax returns he filed, which did
not include an information upon which an assessment could be generated and in
one case, resulted in a conviction and in the other case resulted in an
acquittal. This indicates the complex nature of income tax law and the issue of
intent on the subject of evasion. Dr. Klundert has been acquitted twice by
juries of evasion and only convicted on the third trial.
Dr. Klundert continues his practice of optometry in
Windsor, Ontario and at present is free on bail.
R.
v. Walther
Mr. Christie is also awaiting an appeal to be heard
in the British Columbia Court of Appeal in regard to the case of David Jonathan
Walther who endeavoured to circumcise his four year old son. He was convicted
at trial of criminal negligence and acquitted of aggravated assault. The Crown
has appealed his acquittal of assault while the defence, under Mr. Christie as
counsel, has appealed his conviction for criminal negligence. The appeal is to
be heard in Vancouver on September 27.
R.
v. S.
Mr. Christie is also challenging the constitutional validity
of the provisions of the Criminal Code in the case of S., which is currently
set for trial in October in Victoria, on charges of “procurement.” This charge
makes a crime the mere act of discussing prostitution with someone who is under
the age of 18 years. This, in Mr. Christie’s view, is a matter of freedom of
expression and the law goes much too far in endeavouring to prevent the
discussion of a matter which may not involve any intent whatsoever to engage in
the actual act of prostitution with a juvenile.
Inquest
of Jeff Hughes
Mr. Christie is also acting pro bono for the family
of Jeff Hughes who was shot by police on October 23, 2009 in the City of
Nanaimo. His inquest is scheduled to commence at the courthouse in Nanaimo on
July 25, 2011.
R.
v. Spratt & Von Dehn
In the case of R. v. Spratt & Von Dehn, Mr.
Christie is involved in the defence of Cecilia Von Dehn, who is charged with
Mr. Spratt with appearing within the “bubble zone” of an abortion clinic, with
signs that advise about the existence of the bubble
zone and the bill by which it was established. In this remarkable and unique
case, people referred to as “abortion protestors” appeared within the bubble
zone not to contradict the law or express opinions about its validity, or
engage in sidewalk counselling, or criticise abortion, but merely to point out
the existence of the bubble zone and the law by which it is established. This
case involves serious issues of freedom of expression and the Access to
Abortion Services Act is being stretched to its utmost limits to prevent anyone
from even identifying the existence of the bubble zone and therefore the law
itself. To speak about the law is a breach of the law, according to the argument
of the Crown. This case is set for decision at 222 Main Street, Vancouver, BC on
June 20 at 9:30am, when Madame Justice Watchuk will deliver her reasons.
CHRC
v. Tremaine
This case involves an individual who has sacrificed
everything for the simple right to his political beliefs. Terry Tremaine was a
well-regarded Mathematics instructor at the University of Saskatchewan who lost
his job and his livelihood after comments made on internet forums came to the
attention of his employer. As if this wasn’t enough, Mr. Tremaine was
prosecuted by the Canadian Human Rights Commission and later criminally. At the
same time as he is being prosecuted criminally before the Court of Queen’s
Bench in Regina, he is being prosecuted before the Federal Court for contempt
of the Human Rights Tribunal’s order for the same posted material. Both of
these prosecutions are for the same comments, deposited on a foreign website, which
nobody was forced to read.
Canadian hate speech laws make it an offence to “communicate”
statements that are “likely to expose a person or persons to hatred or contempt.”
But can a person who simply deposits information on a foreign computer for
other people to download on their own terms really be said to have “communicated?”
Mr. Tremaine isn’t trying to force his views on anyone, only to maintain a
record of them in another country where they are perfectly legal. If a Canadian
chooses to go out of the way to access that record, who’s really doing the
communicating? As the cases against Mr. Tremaine wind their way through the
courts, they are bringing to light numerous important issues about the limits
on state power to prosecute an individual for their honestly-held peaceful
beliefs.
The contempt matter is set to be heard in the
Federal Court of Appeal in Vancouver during the week of September 15. The next
appearance on the Criminal Code matter in Regina is June 21. Mr. Christie will
be making both appearances.
CHRC
v. Lemire
CHRC v. Lemire: Another case involving hate speech
laws, which has been successfully been argued up to this point. The Canadian
Human Rights Tribunal itself recognized that the hate speech provision of the
Human Rights Act was a violation of the constitutional right to free expression
and refused to enforce it. Now the Human Rights Commission (the prosecutorial arm of Canada’s human rights
bureaucracy) is appealing in an attempt to save this insidious law.
Fortunately, Mr. Christie is not alone in this battle, as numerous civil
liberties groups have jumped on the bandwagon in support of freedom of
expression.
Marc Lemire was initially and continues to be ably defended by the experienced civil liberties lawyer from Brighton, Ontario, Barbara Kulaszka. Mr. Christie, on behalf of the Canadian Free Speech League, is merely an intervener to support the arguments of Mr. Lemire as they are currently being presented to the Federal Court trial division’s judicial review of the Tribunal’s decision to quash the section.